NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well
as formal revision before publication in the New Hampshire Reports. Readers are requested
to notify the Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building,
Concord, New Hampshire 03301, of any errors in order that corrections may be made before
the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the
morning of their release. The direct address of the court's home page is:
http://www.state.nh.us/courts/supreme.htm

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Plymouth Family Division

No. 2000-288

DEBORA-MARIE ROGOWICZ

v.

WILLIAM J. O'CONNELL

December 10, 2001

Philip T. McLaughlin, attorney general (Ann M. Rice, senior assistant
attorney general, on the brief and orally), for the plaintiff.

Risa Evans, assistant appellate defender, of Concord, by brief and orally, for
the defendant.

BRODERICK, J. The defendant, William J. OConnell, appeals his conviction for
indirect criminal contempt. We reverse and remand.

The record supports the following facts. Debora-Marie Rogowicz and the defendant had a
romantic relationship for several years. In September 1999, Rogowicz filed a domestic
violence petition against him. The family division issued a protective order in early
October, which mandated that the defendant not contact, stalk, harass, intimidate or
otherwise interfere with Rogowiczs person or liberty.

Approximately one month after the protective order was issued, Rogowicz filed a request
for an emergency hearing, alleging that the defendant had violated the order on numerous
occasions. The Family Division (Carbon, J.), treated Rogowiczs request as a
motion for criminal contempt, notified the defendant of the allegations and his attendant
rights and referred the matter to the county prosecutor. The county prosecutor apparently
misconstrued the case as being "civil in nature," and declined to pursue it.

In late November 1999, Attorney Susannah Colt, the director of New Hampshires
Legal Assistance Domestic Violence Project, filed an appearance in the contempt case on
behalf of Rogowicz. Colts essential role, however, was to prosecute the defendant
for criminal contempt. The record is not clear on how Colt assumed the role of prosecutor,
but a pleading she filed alleges that the family division requested her appearance.

The defendant filed a motion to "preclude" Colt from prosecuting the case,
asserting that she had an interest in gaining a criminal conviction because it would
benefit the domestic violence project and perhaps assist in securing future funding. He
also argued that Colts client in the matter was Rogowicz; thus, Colt was serving two
masters  Rogowicz and the State. The defendant contended that this arrangement could
result in a conflict between Colts ethical obligations to her client and her
prosecutorial duties. The defendant was particularly concerned that Colts
prosecutorial obligation to comply with discovery requests would conflict with her duty to
protect material covered by the attorney-client privilege.

The Family Division (Kelly, J.) denied the motion to disqualify Colt, rejecting
the defendants argument that Colt had an interest in gaining a conviction to benefit
the project as "thoroughly unconvincing and without support." The family
division did not, however, address the defendants contention that Colts
representation of Rogowicz conflicted with her prosecutorial duties. The defendant was
convicted of indirect criminal contempt. This appeal followed.

The issue presented by this appeal is whether the trial court committed reversible
error by allowing counsel for a party who benefited from a court order to prosecute
indirect criminal contempt for alleged violations of the order. This issue is a question
of law and, thus, we apply a denovo standard of review. SeeState
v. Paulsen, 143 N.H. 447, 449 (1999).

Contempt is "a specific and substantive [common law] offense that is separate and
distinct from the matter in litigation out of which the contempt arose." Town of
Nottingham v. Cedar Waters, Inc., 118 N.H. 282, 285 (1978) (quotation omitted). The
two classes of contempt  civil and criminal  are distinguished by the
character and purpose of the possible punishment. While civil contempt is remedial and
aims to coerce compliance with a court order for the benefit of the complainant, criminal
contempt seeks to vindicate the dignity of the court by punishing the contemnor with a
determinate sentence. Seeid. Criminal contempt proceedings arising out of
civil litigation are between the public and the defendant. Seeid.

Generally, a proceeding for criminal contempt must satisfy the procedural requirements
of a criminal proceeding. State v. Lieber, 146 N.H. __, __ , 767 A.2d 452, 454
(2001). The common law of this State, however, has not precluded the institution and
prosecution of certain criminal complaints by private citizens within established
limitations. SeeState (Haas Complainant) v. Rollins, 129 N.H. 684, 685
(1987). This common law principle, we believe, extends to the initiation and prosecution
of a criminal contempt proceeding by a private attorney.

Indeed, in Young v. U.S. ex rel. Vuitton et Fils S. A., 481 U.S. 787, 793
(1987), the United States Supreme Court concluded that it is well-established that courts
"possess inherent authority to initiate contempt proceedings for disobedience to
their orders, authority which necessarily encompasses the ability to appoint a private
attorney to prosecute the contempt." Because the purpose of criminal contempt is to
vindicate the authority of the court, it is essential that the court have some mechanism
of self-protection to ensure criminal contempt does not go unpunished. "Courts cannot
be at the mercy of another Branch [of government] in deciding whether such proceedings
should be initiated." Id. at 796. In sum, the fundamental purpose of criminal
contempt proceedings is to preserve respect for the judicial system and its orders.
"As a result, courts have long had, and must continue to have, the authority to
appoint private attorneys to initiate such proceedings when the need arises." Id.
at 800-01.

The authority to appoint a private prosecutor, however, should be exercised with
restraint in accord with the notion that "only the least possible power adequate to
the end proposed should be used in contempt cases." Id. at 801 (brackets and
quotation omitted). We agree with the Court in Young that criminal contempt should,
in the first instance, be referred to the executive branch for prosecution. Seeid.
We are confident that in most cases the executive branch will act to preserve respect for
judicial authority. In the unusual case in which a court believes that prosecution is
necessary, even after the executive branch has declined to act, a court may appoint a
private prosecutor.

In the exercise of its supervisory authority, the Court in Young also held that
"counsel for a party that is the beneficiary of a court order may not be appointed as
prosecutor in a [criminal] contempt action alleging a violation of that order." Id.
at 809. We regard this holding in Young as persuasive and adopt it. It is the
prosecutors duty to "remain under appropriate restraint and to avoid violent
partisanship, partiality, and misconduct which may tend to deprive the defendant of the
fair trial to which he or she is entitled." 63C Am. Jur. 2d Prosecuting Attorneys
§ 23 (1997). The "prosecutors duty is to seek justice, not merely to
convict." State v. Bujnowski, 130 N.H. 1, 5 (1987) (quotation omitted).
Therefore, the prosecutor has a duty to the public to achieve justice and a duty to the
defendant to "never lose sight of the fact that [the] defendant is entitled to a full
measure of fairness." 63C Am. Jur. 2d Prosecuting Attorneys § 23.

In contrast, a private attorney generally owes a duty of loyalty only to the client and
"should pursue a matter on behalf of a client despite opposition, obstruction or
personal inconvenience to the lawyer, and may take whatever lawful and ethical measures
are required to vindicate [the] clients cause or endeavor." N.H. R. Prof.
Conduct 1.3, ABA Model Code comments. All attorneys must avoid conflicts of interest
and are bound to avoid even the appearance of impropriety. SeeN.H. R. Prof.
Conduct 1.7; Wehringers Case, 130 N.H. 707, 719 (1988).

Private attorneys appointed to prosecute criminal contempt represent the State and are
duty bound to advance the public interest in vindicating the courts authority. SeeYoung, 481 U.S. at 804. Accordingly, "[a] private attorney appointed to
prosecute [alleged] criminal contempt . . . should be as disinterested as a public
prosecutor who undertakes [any criminal] prosecution." Id. This ensures that
the private prosecutor can effectively seek justice on behalf of the State, while
vigilantly protecting a defendants right to a fair trial. To preserve the integrity
of such a prosecution, we do not concern ourselves only with actual impropriety or
prejudice, but also with "the potential for [any] private interest to
influence the discharge of public duty." Id. at 805.

When a private prosecutor represents a party involved in the prosecution, the
prosecutors public duty to pursue justice may be compromised by the duty to
zealously represent the interests of his client. Seeid. at 804; N.H. R.
Prof. Conduct 1.3. The appearance of impropriety and the potential for conflicts of
interest are inherent in such a situation. We reject the reasoning in Wilson v. Wilson,
984 S.W.2d 898 (Tenn. 1999), cert. denied, 528 U.S. 822 (1999), which the
trial court relied upon in denying the defendants motion to disqualify Colt. In Wilson,
the Tennessee court disagreed with Young, concluding that no potential for conflict
or the appearance of impropriety is present when a private attorney who represents the
beneficiary of a court order prosecutes a contempt action arising from that order. We
simply cannot reconcile the arguments advanced in Wilson with our analysis of the
conflicting duties of private attorneys and prosecutors and the ethical obligations of
both to avoid even the appearance of impropriety.

In this case, Rogowicz was the beneficiary of the protective order allegedly violated
by the defendant. Colt appeared on behalf of Rogowicz, and clearly represented her
interests, while prosecuting the defendant for criminal contempt based upon a violation of
the protective order. Further, the potential for the private interests of Rogowicz to
influence the discharge of Colts prosecutorial duties was readily apparent.
Accordingly, Colt should have been disqualified.